Subsequent Remedial Measures in Georgia

Suppose someone is injured due to a dangerous condition on a property or through a defective product. Suppose the person controlling the property or the maker of the product chooses to repair or renovate the dangerous property or to re-design the product so that such an injury does not occur again. Should such an action be admissible by the first injured party to show that the property or product was dangerous in the first place? According to Georgia courts, the answer is “no”.

A subsequent remedial measure is a post-accident repair or renovation. Many times, a landowner will attempt to fix or repair a condition, like a crumbling sidewalk or defective door closer, after someone brings a claim. This is reasonable because that landowner does not want someone else to be hurt and make another claim, especially since he has been put “on notice” of the problem. For example, when a homeowner with a pool in the backyard erects a fence around the pool after a person trespassed on the land and was injured in the pool, erecting the fence to prevent future injuries or damages is a subsequent remedial measure.

Georgia courts have held that evidence that a subsequent remedial measure was made is inadmissible to prove negligence on the part of the defendant. McCorkle v. Dept. of Transp., 257 Ga. App. 397 (2002). The public policy reasons to hold subsequent remedial measures inadmissible relate to the promotion of advancements in the safety and design of products and premises, as held in McCorkle v. Dept. of Transportation.

If subsequent remedial measures were admitted into evidence to prove negligence or known defects in the item, the reasoning goes, advancements in the safety or design may never be made. Another argument to make subsequent remedial measures inadmissible is that improvements or repairs made after an injury or sustained damages should not be evidence that the premises or product as they were before the injuries or damages were the cause of those injuries or damages. This is a controversial principle. However, most courts in the country adhere to this rule.

Georgia law follows the Federal Rules of Evidence, Rule 407, which reads: “when, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.” This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.”

Although not permitted to prove negligence, Georgia does permit subsequent remedial measures to be entered into evidence in two situations: (1) to prove ownership by the defendant, and (2) for impeachment purposes. Using the same fence and pool example from above, evidence of the homeowner erecting a fence may be admitted to prove the person erecting the fence is the owner of the home and land where the pool was and the person had control over the land, including the pool. If the homeowner claims there was nothing the homeowner could have done to prevent the injuries or damages that occurred because the pool was not fenced, but then subsequently fences the pool, this fact can be introduced into evidence for impeachment purposes. The Georgia Court of Appeals, in Studard v. Dept. of Transp., 219 Ga. App. 645 (1995), held that evidence of subsequent remedial measures may be permitted for impeachment purposes but it must be applied with care.

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